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Only The Guilty Go Quietly To The Gallows.

From a position of power you will realize
vindication and freedom; information gives you power; discovery provides
you information. Discovery is the right of every litigant, thus to unlock
the vault where all the information is kept you must be a party to
litigation, either as the plaintiff, or as a defendant.

A defense lawyer once told me that
convictions are virtually predetermined in every prosecution. This is so,
he expressed, because prosecutors are able -- even encouraged -- to
conceal exculpatory evidence, fabricate exculpatory evidence, and to
knowingly present wholly false and perjured testimony. Discovery in
criminal prosecutions seldom yields but the tip of the iceberg. The sage
lawyer explained to me that the real game is played post-conviction, where
the goal is to convince an appellate court to provide an evidentiary
hearing, and with it, precious discovery. The government knows the game
too, as do the judges of the appellate courts. Evidentiary hearings are,
therefore, rarely provided. There are other ways into the vault.

Civil litigation will get you the treasures
you seek. Of course, you cannot sue the judge who presided over your case,
because he has absolute immunity from liability and damages for his
judicial or adjudicary acts. See, Buckley v. Fitzsimmons, 509 U.S.
259 (1993); Mireles v. Waco, 502 U.S. 9 (1991); Stump v.
Sparkman, 435 U.S. 349 (1978). Your prosecutor has, depending on the
nature and timing of his malfeasance, either absolute or qualified
immunity from suit. See, Anderson v. Creighton, 483 U.S. 635
(1987); Imbler v. Pachtman, 424 U.S. 409 (1976). Worse yet, civil
litigation against the judge, prosecutor, or agents involved in your
prosecution and conviction is barred by the Supreme Court holding in
Heck v. Humphrey, 512 U.S. 477 (1994), regardless of the magnitude
of the constitutional violations (civil litigation against government
personnel barred where a favorable judgment would necessarily call into
question the validity of the criminal conviction). Nonetheless, civil
litigation provides you two ways into the vault.

The Heck holding protects government
personnel, not so the private citizens involved in your case. In the
course of criminal prosecutions any number of such persons fabricate their
testimony, conceal evidence, thwart your access to the court, interfere in
matters between you and defense counsel, or otherwise violate your
constitutional rights while sleeping with the government; violations of,
for example, your First, Fifth, and Sixth Amendment rights. Those persons
are liable for their actions by means of civil litigation. Once civil
litigation is filed and served, all the precious gems of discovery are
yours for the taking, and not only discovery from the named parties, but
from unnamed third parties too. See, Federal Rules Of Civil Procedure,
Rule 45 (discovery of non-parties). You can get into the
government's vault by way of civil litigation of a
non-government person. In many cases the private citizen simply will not
have the time, knowledge nor ability, to access the myriad and confusing
materials necessary for self-representation. Paid counsel is cost
prohibitive. It is a rare instance where the individual being sued can
bear the financial burden of prolonged litigation. The attorney that does
come on board will require up front cash in amounts usually out of reach
or reason to the average person. The attorney who does come on board
quickly jumps ship when he begins to be peppered with your filings,
including wide ranging discovery requests. When it starts to set in the
attorney’s mind that you are determined in your efforts, the attorney will
demand greater and greater amounts of cash from the client; cash the
client seldom has or is reluctant to part with. Either the party being
sued or his attorney will abandon ship. You win either way, but plan
accordingly. Be prepared to get exactly what you asked for in the
Complaint. Monetary considerations aside, your asserted facts and claims
will be established. Keep this in mind when drafting the Complaint. For
example, did you assert that the person being sued committed perjury? Did
you claim that the person concealed exculpatory evidence at the behest of
law enforcement agents? Obviously, the value of a judgment as to such
assertions and claims, by default or otherwise, would be enormous. In the
event the person being sued does fight you, then before obtaining the
judgment you seek you will have a right to the full panoply of discovery.
So whether your Complaint is contested or not the effort is win-win for
you. What if the circumstances do not lend themselves to suing any of the
witnesses? How then can you get discovery through litigation? There is
another way.

Recall that discovery is the right of every
litigant, plaintiff and defendant. Your situation may require that you
become a willing defendant to civil litigation; turning the clich� "so sue
me" to your advantage. Be aware; in the event you have already
been convicted of a crime and are incarcerated you may not have assets and
income, but if you are still free, flush with assets and income, then
there are certain risks inherent with being sued. In this tactic your goal
is to cause a person to bring suit against you in regards to the matters
directly related to your criminal prosecution/conviction. Only you can
weigh the pros and cons of encouraging litigation that you may lose and
suffer a financial judgment -- weighed against the boundless discovery you
will reap in the process, discovery that may free you from the unjust
conviction against you (or that may persuade the government to drop its
case prior to trial). From a position of power you will realize
vindication and freedom; information gives you power; discovery provides
you information. Getting a person to sue you is not at all difficult,
thanks to Americans being the most litigious people in the world, and
because we have more lawyers per capita than any other country. Published
statements, true and accurate as they are, may be of the nature that the
person has to challenge them. For example, correspondence to friends and
neighbors and notices to the media making it known that a person active in
your trial committed perjury, concealed exculpatory evidence or was
otherwise sleeping with the government may incite the person to bring an
action in libel against you. Also, orally accusing someone of horrendous,
infamous or unspeakable private behavior can result in a slander suit,
because the person, despite knowing the truth of your pronouncement, has
no choice but to deny what you have said and attempt to protect his soiled
reputation. The nexus to your case, of such oral accusations, might be
that the government proactively shielded the person from prosecution for
his private behavior in exchange for specified actions helpful to the
government’s prosecution of you. False statements and fanciful
pronouncements are not necessary, and I am not promoting any such conduct
(no crime a man commits in behalf of his freedom, however, can be as great
as the crimes committed by those who deny his freedom). Moreover, a civil
jury will sense the truth and be sympathetic to it. Before concluding, let
me point out Federal Rules Of Civil Procedure, Rule 56(f), which holds
that the court should not rule on a motion for summary judgment until the
non-moving party has had the opportunity to discover information essential
to his opposition of such a motion. Rule 56(f) allows a party who lacks
the essential evidence necessary to oppose the movant’s motion for summary
judgment, to endure the motion by presenting the court with valid reasons
for the lack of proof and showing how postponement of a ruling on the
motion will permit discovery of evidence essential to his opposition.
Diligence is crucial. To justify a 56(f) ruling you must demonstrate that
you have pursued discovery diligently, but for reasons beyond your control
essential evidence remains outstanding. Your supporting declaration must
be thorough and detailed; vague or conclusionary allegations as to why
discovery has not been completed will fail. Therefore, you must initiate
discovery immediately upon service of the Complaint. Thereafter, should
your opponent file for summary judgment, use Rule 56(f) as a weapon to get
the court to compel him to provide discovery. Rule 56(f) is powerful. In
one particular case, I was able, by using Rule 56(f), to convince the
moving party to seek dismissal of his summary judgment motion rather than
have the court compel discovery. Settlement talks followed, and the case
was resolved favorable to my position, because the opposing party
literally had too much to hide.

Whether This Way, as plaintiff, Or That, as
defendant, every litigant has the right to discovery. Discovery provides
information. Information gives you power. From a position of power you
will realize vindication and freedom.

If you have any questions or comments, or would like to correspond with Dave, please
Contact Me.
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